Last year, the Delaware Coalition for Open Government sued Delaware’s Chancery Court judges for operating a private arbitration system. Empowered by legislation passed in 2009, the judges were acting as arbitrators in business disputes, which, the Coalition argued, effectively made court proceedings confidential. According to the Coalition, this violated the presumptive right to access to judicial proceedings and documents, as guaranteed by the First Amendment of the Constitution.

Judge Mary McLaughlin from the Eastern District of Pennsylvania agrees. In a 26-page opinion, she rules that the arbitrations are sufficiently like a trial to be covered by the right to access presumption in the First Amendment. In coming to this conclusion, she argues that unlike arbitrators, who are private actors selected by the parties, judges are appointed to public service and therefore must act in the public interest.

Arguably one can’t simply create an arbitration by closing the Court door. A Judge remains a Judge, with a Judge’s mindset. Participants are entitled to choose their arbitrator from their peers, away from the hidden influences of the State legal system.